Volume 47, Issue 2
"The plaintiff claimed the decedent’s cancer should have been diagnosed by the original urologist at least 3 years before the actual diagnosis, and claimed that timely diagnosis and treatment would have prevented the spread of the cancer," writes Acacia Brush Perko, Esq.
In my last column (“Radiology report errors prove costly,” Dec. 2018), we examined a case where a tumor in a stone patient resulted in a $4.5 million settlement prior to trial. In that matter, I noted that if the case proceeded to trial, it likely could have returned a daring verdict, perhaps even above the settlement amount, in the hands of a jury. Let’s now look at the outcome in another kidney cancer case, which did go to trial.
The plaintiff’s decedent, a 62-year-old female retiree, learned that a large, stage III cancerous tumor occupied her left kidney. She underwent a nephrectomy, but her cancer had reached other areas of her body. The patient had been experiencing recurrent infections of her urinary tract, and she had also been suffering long-standing neurogenic incontinence of her bladder. Those conditions were being managed by her urologist.
Cancer had metastasized
During a period that spanned nearly 10 years and the cancer diagnosis, the urologist performed more than 75 examinations of the patient. Her cancer was diagnosed after her care had been transferred to another urologist. Following diagnosis, it was discovered that the cancer had metastasized to her lymphatic system, and was subsequently detected in a lung. The cancer could not be eradicated, and ultimately claimed her life, 2 years after the diagnosis.
Also by Acacia Brush Perko, Esq.: Delayed abscess Dx results in paralysis
The plaintiff claimed the decedent’s cancer should have been diagnosed by the original urologist at least 3 years before the actual diagnosis, and claimed that timely diagnosis and treatment would have prevented the spread of the cancer.
The plaintiff sued the original urologist and a hospital facility that provided treatment of the patient’s neurogenic incontinence, claiming that the hospital facility was vicariously liable for the actions of its staff. The hospital was dismissed via summary judgment, but the case proceeded to trial against the urologist.
At trial, the estate contended that the decedent’s tumor should have been diagnosed 3 years earlier than it was. The plaintiff further contended that the decedent’s incontinence and recurrent infections should have prompted biannual imaging of her kidneys. The plaintiff claimed that the imaging would have revealed her cancer’s presence, and the plaintiff’s experts argued that timely treatment would have prevented metastasis of the disease. Additionally, the plaintiff contended that the decedent’s tumor could have been detected via a physical examination, but the urologist failed to document any such examination.
The defendant urologist acknowledged that imaging would have revealed the decedent’s tumor, but defense experts contended that her condition and symptoms did not require performance of such studies. The defendant urologist also acknowledged that her urinary tract first became infected just 3 months prior to the cancer diagnosis. He claimed that in his course of treatment at the time, imaging would have been performed after the administration of an antibiotic. However, the patient abandoned this treatment.
The urologist’s defense experts further opined that the patient’s other infections were the result of daily self-catheterizations that were necessitated by her incontinence. The defense claimed that her infections were controlled via administration of antibiotics, that a urinalysis was performed during each of his examinations of the patient, and that he examined and cultured the specimens.
Next: Tumor could not be palpatedTumor could not be palpated
The urologist’s defense also claimed that he regularly performed physical examinations of his patient, but that he could not palpate her tumor. The defense further noted that the subsequent treating doctors could not palpate the tumor.
The patient died at age 64. She was survived by a husband and three children. Her estate sought recovery of wrongful-death damages including $81,000 for medical expenses, $1 million for the estate’s loss of services, $3 million for the decedent’s pain and suffering, and a total of $1.5 million for her children’s loss of parental guidance. The decedent’s widower sought loss of consortium.
After a 10-day jury trial, a six-member jury, composed of two men and four women, returned a 6-0 defense verdict, holding that the urologist did not breach any standard of care.
LEGAL PERSPECTIVE: While this outcome is starkly different from the $4.5 million settlement that we last discussed, this urologist was confident in his defense that the patient’s infections were controlled with antibiotics, that a urinalysis was performed during each of his 75 examinations of the patient, and that the tumor could not be palpated on physical exam.
Further, this urologist had a patient leave his care 3 months before the tumor was even diagnosed. As the defendant urologist maintained at trial, he would have performed imaging after antibiotics. At the end of a 10-day jury trial, this six-member jury agreed that the urologist did not breach any standard of care.
Our last kidney cancer case resulted in a sizable settlement, whereas this also-tragic outcome resulted in a defense verdict. What then, can we conclude in comparing the two cases? Quite simply, each case presents its own storyline. Depending on the players, some should be tried and others settled.